The ‘pedagogical’ constitution that shaped modern Indian democracy and why it’s worth saving
A review of India’s Founding Moment: The Constitution of a Most Surprising Democracy by Madhav Khosla
As the Indian republic inches closer to its seventy-first anniversary, its democratic foundations remain under serious threat. For months now, the country has been witnessing a battle between the incumbent government and its citizens over the controversial Citizenship Amendment Act 2019. There have been long running nation-wide protests against this act, the scale and duration of which is noticeable. However, what really distinguishes these protests is how India’s constitution features centrally in them. In public gatherings across the nation, protesters have held up the document, mass-recited its Preamble almost as a prayer, and held up portraits of its framers. This is the first time in independent India’s history that the constitution and its ideals have appeared in the public imagination in such a manner. Political theorist and lawyer Madhav Khosla’s book India’s Founding Moment: The Constitution of a Most Surprising Democracy uncovers the ideas behind India’s unique constitution, tells us how they’ve shaped the country and why they matter more than ever in the present moment.
Khosla suggests that the idea of democracy was central to the constituent assembly debates and that the founders aimed to establish India as a truly democratic nation with government through popular representation. It was envisioned so with the objective of transferring power into the hands of ordinary citizens through universal franchise and to transform them from “subjects into citizens”. According to Khosla, this unique commitment to democracy is evident when one considers the effort that went into the text of the constitution and the circumstances it was drafted in. The final outcome was neither a mere reproduction of colonial-era legislation and other constitutional texts, nor did it follow as a “natural and inevitable” (17) result of a long liberal tradition within the subcontinent. Rather, the constitution was specifically drafted to help resolve the unique challenges of democratising India.
But what were these unique challenges? Khosla highlights three key issues at the ‘founding moment’ and how the constitution was arranged to address them: (1) developing a common understanding of laws and rights through codification, (2) creating a centralised state that would effectively enforce established laws and rights and (3) cultivating individual identity free from communal bonds of religion and caste. According to Khosla, the architects of the constitution saw it as a “pedagogical” tool which would be used to educate Indians about what it meant to be democratic. Codification was their attempt at clearly defining rights for the citizens, including where and when these rights applied. Centralisation was an attempt to bring all citizens “in an equal relationship of common authority” (110). Finally, creating conditions for individual representation free of communal bonds was an endeavour to ensure that power was shared equally among al citizens, and not limited to the traditional governing classes. Each aspect of the constitutional project was geared to facilitate “[engagement] in a new form of reasoning and participation” (24) and create democratic citizens through democratic politics.
Khosla makes a case for the exceptional nature of India’s democratisation and constitutionalism and its significance to political philosophy. Democracy was far from being considered a stable form of governance in the wake of the Second World War. The war itself was a result of the collapse of democratic states birthed from continental empires post the First World War. It’s aftermath, And so, an attempt to turn a poor, uneducated country into a democracy lacking its preconditions was seen as project doomed to fail. Khosla states that India’s founders were aware of these opposing views and the obviously daunting task that lay before them. Yet, they took it upon themselves to create conditions for democracy where none existed and the frameworks for it to sustain through the practice of democratic citizenship. This experience of ‘creating’ democracy in inhospitable conditions, he argues, should be viewed as its definitive experience in the modern world.
In the book, Khosla portrays the architects of the Indian constitution in glowing light, as men and women who were motivated by a democratic ‘impulse’, who sought to uphold democracy’s high ideals. But were the founders truly moved by a democratic impulse? And did they truly implement elaborate constitutional checks upon the democratic process? That doesn’t seem to have been the case.
The rationale behind the extensive codification of rights within the constitution was to make the “grammar of constitutionalism” (71) available to citizens instantaneously and leave avenues for amendments open to future generations. This is exemplified by the constituent assembly’s decision to draft in a set of non-enforceable Directive Principles of State Policy. Despite enjoying popular support, the constituent assembly was still not an elected body. Khosla tells us that the members only saw it fit to provide for easy amendment provisions as a measure of ensuring that the people had “real power” (158) once the constitution came into force. Surprisingly though, the first constitutional amendment arrived as early as sixteen months after the text came into force and that too, from an unelected body. The story of the first amendment and how it subverted constitutional guarantees that Indian citizens were promised months before is vividly documented by Tripurdaman Singh in his book Sixteen Stormy Days. Singh’s book, ironically published days after Khosla’s, discusses how an unelected legislature composed of many members from the constituent assembly saw fit to overrule court decisions to bring about the first amendment. The amendment ushered in zamindari abolition, curbs on free speech and also validated reservations in education and public employment; all of which were deemed violations of fundamental rights by courts of law in the new democracy. The guardians of liberal constitutionalism who shaped Indian democracy in Khosla’s account of the drafting appear in stark contrast as despotic, authoritarian figures in Singh’s account of the texts’ amendment. It seems that in his generous portrayal of the constitution’s framers, Khosla ignores the deep ideological commitments and political aspirations that many of them held.
Similarly, the constituent assembly’s impulse towards centralization and modernization appears to subvert the idea of democracy. While they rightly argued that the change needed in Indian society was “too severe to take place from within” (108), the framers of the Indian constitution overstepped the bounds of democracy in their attempt to shape India as a democratic nation. Within the assembly, it was argued and later conceded that there should be state regulation, if not ownership of all industry. This extreme regulation of industry, however, later resulted in rampant political opportunism and corruption. Rent-seeking became the norm in government institutions and created an undemocratic relationship of authority between the government and ordinary citizens. One can’t help but wonder why Jawaharlal Nehru, the most vocal advocate of state control, perceived communal disputes as the “creation of self-seekers” (121), but did not apply the same logic of human incentives to the relationship between government and citizens. Here again, Nehru and by extension much of the assembly’s position on centralization comes across as a mere exercise of power grabbing by the centre.
The argument of corruption extends further when one arrives at the questions of identity and representation which Khosla presents in the third and final chapter of the book. While reservations were envisioned as an instrument of upliftment for ‘backward’ classes, they gradually transformed into a vote-grabbing tool for opportunistic politicians. As a result, identity politics and casteism still prevail in contemporary India perhaps with greater political legitimacy than at any time in history. Alarmingly, rampant corruption and biases appears to have even seeped into sacrosanct institutions such as the Supreme Court of India. Legislative control over judicial appointments has resulted in questionable verdicts in cases involving high political stakes, especially frequently in the past few years. Moreover, the apex court now also appears to harbor a class bias, clearly preferring to respond with urgency to matters concerning ‘important’ groups rather than remaining the accessible provider of justice to all citizens that it was instituted to be. One may plausibly argue that with such unquestioned authority, the Indian government’s claim to legitimacy is lost as it has come to subjugate, rather than liberate citizens.
In almost seventy one years of its existence, India’s constitution has been amended with such frequency that it has mockingly been referred to as a ‘periodical’. Its provisions have time and again been violated and its ideals frequently tarnished by petty politicians and bureaucrats. Nevertheless, it has survived India’s democracy and India’s democracy has preserved it. Despite its flaws, it has still come to shape how Indians interact with each other and understand their rights. There is no better example of this than the emergence of spontaneous nationwide protests against the controversial CAA and lately to some extent, the haphazardly passed Farm Laws. It is in celebration of that fact that Khosla asks us to acknowledge the brilliance of the ‘founders’ and the peculiar constitution they left us with. The present moment may be one of extreme difficulty for Indian democracy. But according to Khosla and the founders, it is also one of great possibility and that possibility lies in the realm of politics. Khosla’s book indeed lives up to its promises: it shows how “ideas matter” (25) and how the moment of India’s birth was filled with a great many of them and deserves more scholarly attention. In doing so, it also shows how the ideas of democracy that the founders of the constitution left Indians with are worth protesting to reclaim.
References:
Khosla, Madhav. India’s Founding Moment: The Constitution of a Most Surprising Democracy. Harvard University Press, 2020.
Singh, Tripurdaman. Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India. Penguin Random House, 2020.
